People often avoid writing their will because it can be difficult to discuss and consider death on such a real and personal level. Sometimes a person’s passing is unexpected, and they had not yet taken steps to prepare an estate plan. If a person dies intestate, meaning they left no will, their assets will be distributed according to state law. State law dictates the outcome no matter how many people come forward in support of a different outcome in line with what the decedent may have verbalized they wanted to happen with their assets.
In order to control what happens to your estate upon your death, you must have a will or other estate planning tool in place.
At Posey Legal, the preparation and exaction of your will is extremely important to us. We want to be sure you have covered all the bases and not left anything out of your will because certain omissions can inadvertently direct part of your estate to an unintended beneficiary, or worse yet, subject your will to a challenge by an heir or devisee.
7 Steps in Making Your Will
- Family information. The first step is for us to meet with you and get all the information necessary about your family. We need to know about your parents, siblings, children, grandchildren, everyone that is still in existence that is considered an heir under the law.
- Special Circumstances.
- Any predeceased children? We need to know if you have a child who predeceased you and how you want to deal with the children of that child, and by extension how you would like to deal with descendants of any child who may now be living, but might predecease you.
- Any estranged children? If have a child that you do not wish to leave assets to in your will, you must state this specifically. Simply omitting a child from the will altogether can provide a compelling opportunity for the will to be challenged. The omitted child can claim that you must have intended to include them in your will, and that the omission was simply an oversight.
- Decide on an executor. If there is a living spouse, that person is usually named as the executor (under Oregon law, this person is referred to as a personal representative). You do not have to name your spouse if you want someone else to have this job. You should also choose one or two other people as alternates in case your first choice is unable or unwilling to take on the task.
- Specific gifts. You can make specific gifts of either money or property. This can include a gift to your favorite charity or organization.
- Tangible Personal Property. If you want to direct certain items of tangible personal property to be distributed to beneficiaries, you can include a list with instructions. The list is not made a part of the will itself so that it can be updated easily without having to amend your will. This process is used to deal with items of sentimental value or household items rather than items of significant value.
- The Residue. After any specific gifts and distributions are made, the remainder of your estate is referred to as the residue. You can make a general statement that you want “my children to have equal shares,” or you can name each child and any other person you want to receive a portion of your estate and the percentage of your estate you want to leave to that person.
- Taxes. You can specify how you want the taxes to be handled. They may be paid by the estate before distribution, or they tax obligation for a particular asset may pass to a beneficiary along with the asset.
Execution of the Will
After the will is drafted, we go over it carefully with you to be sure it is exactly how you want it to be. When we have our execution appointment, there will be two witnesses present to watch you sign. They will also sign an affidavit attesting to the fact that they witnessed you sign, that you were of sound mind, that you were not influenced, and that the signing was voluntary.
The separate affidavit of the two witnesses helps dispel any questions as to the legitimacy of the will, so it can better withstand any challenge anyone may raise concerning lack of capacity or undue influence.
For assistance in preparing your will, contact us at Posey Legal, P.C.